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July 18, 1984


The opinion of the court was delivered by: Getzendanner, District Judge.


This habeas corpus proceeding is before the court on respondent's motion to dismiss. For the reasons stated below, the court grants respondent's motion. In addition, the court denies as moot petitioner's pending motion to reconsider its order of January 17, 1984, dismissing as a respondent the Circuit Court of Cook County, Illinois.


In April 1977 petitioner Larry Reimnitz was convicted in the Circuit Court of Cook County of murdering his wife, Linda Reimnitz. She had been found strangled on January 16, 1975. Central to the State's case against Reimnitz was a transcribed inculpatory statement which he gave on August 25, 1975. Reimnitz moved unsuccessfully for the suppression of this statement (and of untranscribed statements given the same day), and on appeal from his conviction he argued that it was error not to suppress the statement. Reimnitz also argued on appeal that it was error to admit evidence of a homosexual act which Reimnitz performed upon a sleeping, unconsenting friend, in early August 1975, seven months after his wife's death (hereinafter the "Silver Lake" incident). The Illinois Appellate Court reversed Reimnitz's conviction, holding that evidence of the Silver Lake incident should not have been admitted, since it had a prejudicial effect outweighing its probative value. People v. Reimnitz, 72 Ill. App.3d 761, 29 Ill.Dec. 117, 391 N.E.2d 380 (1st Dist. 1979).

On remand, before a new trial judge, Reimnitz moved for dismissal, arguing that the Double Jeopardy Clause barred retrial. The general rule, of course, is that the Double Jeopardy Clause does not bar retrial of a defendant who successfully has appealed and obtained reversal of a conviction. Tibbs v. Florida, 457 U.S. 31, 39-40, 102 S.Ct. 2211, 2217, 72 L.Ed.2d 652. Reimnitz raised two arguments to avoid this general rule, one based on the introduction of evidence of the Silver Lake incident, and the other based on the introduction of his inculpatory statement. The trial court granted Reimnitz's motion to dismiss, accepting his argument based on evidence of the Silver Lake incident. The Illinois Appellate Court reversed, addressing and rejecting both of Reimnitz's arguments, and remanding for retrial. People v. Reimnitz, 97 Ill. App.3d 946, 53 Ill.Dec. 265, 423 N.E.2d 934 (1st Dist.), cert. denied, 456 U.S. 906, 102 S.Ct. 1751, 72 L.Ed.2d 162 (1982).

Reimnitz now has petitioned this court for habeas corpus relief, raising both of the double jeopardy arguments he raised in the state courts. Reimnitz's petition alleges that he is free on bail awaiting retrial. (Petition, ¶ 1.) He thus is subject to the conditions of Ill.Stat.Ann. ch. 38, ¶ 110-10(a) (Smith-Hurd Supp. 1983-84), and it seems clear that he must be deemed to be in "custody," as is necessary to support jurisdiction under 28 U.S.C. § 2241(c)(3). See Justices of Boston Municipal Court v. Lydon, ___ U.S. ___, ___ _ ___, 104 S.Ct. 1805, 1809-10, 80 L.Ed.2d 311 (1984). It also appears that Reimnitz's petition is subject to the requirements of 28 U.S.C. § 2254, which apply to petitions brought by persons in custody pursuant to the judgment of a state court. Id. at 1810 & n. 3. The court already has held that Reimnitz has satisfied the exhaustion requirement of § 2254(b). (Memorandum Opinion and Order of 1/17/84.) The State voluntarily has delayed Reimnitz's retrial, pending the outcome of this proceeding.

The record before the court has been supplemented to the extent requested by Reimnitz. (See Reimnitz memo filed 3/5/84, p. 2.) On January 23, 1984, with Reimnitz's agreement, the court excused respondents from filing a transcript of Reimnitz's trial and suppression hearing, and allowed respondents to file instead the abstract prepared by Reimnitz for use on direct appeal from his conviction. The parties have not discussed by what standards the court should decide respondents' motion to dismiss, but the court believes that the motion must be granted even by summary judgment standards; the record before the court indicates that there is no genuine issue as to any material fact.


Reimnitz argues that introduction of evidence of the Silver Lake incident was prosecutorial misconduct or overreaching, barring retrial after reversal on appeal. The court believes that Reimnitz's argument is insufficient as a matter of law, and the court also believes that the record does not reveal any prosecutorial misconduct or overreaching.

The question raised by Reimnitz usually arises in the context of an attempt to retry a defendant who successfully has moved for a mistrial. In Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), the Supreme Court found its prior decisions to be somewhat in disarray, and to clarify this area of law the Court held:

  Prosecutorial conduct that might be viewed as
  harassment or overreaching, even if sufficient to
  justify a mistrial on defendant's motion,
  therefore, does not bar retrial absent intent on
  the part of the prosecutor to subvert the
  protections afforded by the Double Jeopardy
  Clause. A defendant's motion for a mistrial
  constitutes "a deliberate election on his part to
  forgo his valued right to have his guilt or
  innocence determined before the first trier of
  fact." United States v. Scott, 437 U.S. 82, 93, 98
  S.Ct. 2187, 2195, 57 L.Ed.2d 65 (1978). Where
  prosecutorial error even of a degree sufficient to
  warrant a mistrial has occurred, "[t]he important
  consideration, for purposes of the Double Jeopardy
  Clause, is that the defendant retain primary
  control over the course to be followed in the event
  of such error." United States v. Dinitz, supra,
  424 U.S., [600] at 609, 96 S.Ct., [1075] at 1080
  [47 L.Ed.2d 267]. Only where the governmental
  conduct in question is intended to "goad" the
  defendant into moving for a mistrial may a
  defendant raise the bar of Double Jeopardy to a
  second trial after having succeeded in aborting the
  first on his own motion.

Id. at 675-76, 102 S.Ct. at 2089.*fn1

The rule stated in Oregon v. Kennedy is an exception to the general rule that a defendant may be retried after successfully moving for a mistrial. It is not at all clear that there is any comparable exception to the general rule that a defendant may be retried after obtaining reversal of a conviction on appeal. Although the question was not before the Court in Oregon v. Kennedy, the Court seems clearly to have assumed that the Double Jeopardy Clause does not bar retrial after appellate reversal of a conviction is caused by prosecutorial misconduct, despite some possible encroachment on the defendant's double jeopardy rights. 456 U.S. at 676, 102 S.Ct. at 2089. Respondents have cited Gully v. Kunzman, 592 F.2d 283 (6th Cir.), cert. denied, 442 U.S. 924, 99 S.Ct. 2850, 61 L.Ed.2d 292 (1979), in which the Court stated:

  [Defendant] argues that the State should be
  barred from retrying him because its own
  misconduct led to the reversal of his first
  conviction. Even accepting that characterization
  of the trial error which caused the appellate
  reversal, it would not affect the State's right
  to retry him. . . . His attempt to analogize his
  situation to cases where retrial has followed a
  mistrial provoked by prosecutorial misconduct is
  unavailing. In such cases, retrial is disapproved
  principally because the misconduct resulting in a
  mistrial has deprived the defendant of "[the]
  valued right to have his trial completed by a
  particular tribunal." . . . [Defendant's] first
  trial proceeded all the way to verdict, and,
  consequently, he fully enjoyed that right.

Id. at 289-90. It seems to the court that the reasoning of Oregon v. Kennedy might in fact have some application to the question of retrial after reversal of a conviction. A review of the record demonstrates, however, that this case could not fall within any such exception, if there is one, to the general rule that the Double Jeopardy Clause does not bar retrial after a defendant obtains appellate reversal of his conviction.

"Q. Directing your attention to the dinner hour, did you have occasion to have dinner with your wife on that date?

A Yes.

Q And shortly after dinner what if anything did you have occasion to do?

A I went to the den to make out a bank deposit.

Q For what purpose?

A I had a couple of checks we were going to deposit.

Q While you were in the den was there a desk in the den?

A Yes.

Q While you were in the den what if anything occurred?

A I called Linda in to endorse the checks and she said she wanted $20.00 and we were talking a little bit and she put her arms around me.

Q Where was she in relationship to you then?

A She was sitting on the desk and then behind me. I was in the desk chair.

Q So, she came up behind you and what did she do?

A She kissed my ear.

Q When you felt her kiss your ear did anything else happen?

A She put her arms around my neck.

Q Anything else? Did you feel the softness of her fur coat?

A Yes.

Q Did she say anything to you at the time?

A No, I don't remember her saying anything.

Q Did you say anything to her?

A I don't remember saying anything to her either. We sat down on the floor, you know, hugging and kissing and fooling around.

Q Was that prelude, possibly to a sexual act?

A Yes, I remember pushing against her with my head and after a while I ...

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